General Terms and Conditions for the Procurement, Management and Billing of Load Flow
Commitments ("LFC GTC")
of
Open Grid Europe GmbH ("Open Grid Europe")
th
of November 13 2014
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Article 1
Object of the LFC GTC
1. Open Grid Europe procures load flow commitments (hereinafter referred to as "LFC") in
accordance with Article 9 (3), Sentence 2, No. 1 GasNZV (German Gas Network Access
Ordinance) taking into account the specifications for load flow commitments as laid-down in the
ARegV Ordinance (KOLA) §11 section 5. The purpose of LFC is to ensure that the existing freely
allocable entry and exit capacities in the NetConnect Germany market area are maintained.
2. Open Grid Europe conducts a market-oriented, non-discriminatory, and transparent call for
tenders to cover its requirements for LFC in accordance with these LFC GTC.
3. These LFC GTC state the general conditions for the procurement, management and billing of
LFC by Open Grid Europe.
Article 2
Tender Procedure
A. Issue of Calls for Tenders and Tendering Phase
1.
The call for tenders shall be published on the website of Open Grid Europe.
2.
The tendering period shall be two weeks, starting on the date of publication of these LFC GTC
and ending on the date stated in the bidding forms.
3.
In order to participate in the call for tenders, the LFC bidder shall submit one or more completed
and signed bidding forms to Open Grid Europe. The submission of the tender documents must
be carried out within the bidding period either by mail (in duplicate) or fax to the address or fax
number indicated on said forms.
4.
Bidders may form groups to submit tenders, always provided that one bidder shall be
designated as the responsible contact in connection with each tender.
5.
The LFC bidder shall be responsible for the correctness and completeness of its LFC tender.
Tenders which are incomplete, incorrect or unclear shall be deemed not to have been
submitted. The same shall apply to any tenders not received before the end of the last day in
the tendering period. Tenders shall not be deemed to have been submitted in good time unless
they are received by Open Grid Europe in good time.
6.
By submitting a tender, the LFC bidder shall be deemed to have made a binding declaration of
intent. All tenders shall be complete and submitted without reservations. The bidder shall be
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bound by the tender submitted until the end of the last day of the contract award phase as
defined in Section B of this Article 2.
7.
Open Grid Europe issues calls for tenders for LFC on the basis of a combination of commodity
charges and demand charges. Specifying a commodity charge in the amount of 0.00 € / kWh or
a demand charge in the amount of 0.00 € / kWh / h is permissible. An offer with a value of 0.00
€ or no quotation means that the LFC has no such commodity or demand charge component.
B. Contract Award Phase
1.
The contract award phase shall start at the end of the tendering phase and end at the end of the
day stated in the bidding form.
2.
For contract award, all tenders received in due time in the proper form shall be listed in order of
ascending price ("merit order list") considering the published weighing factors for demand and
commodity charges. Contracts shall then be awarded in the order in which tenders are listed,
starting with the lowest-priced tender and continuing until the demand of Open Grid Europe for
LFC has been met. Where the same price has been quoted in more than one tender, contracts
shall be awarded in the order in which the tenders concerned were received by Open Grid
Europe.
3.
The award of contracts shall not constitute any obligation on the part of Open Grid Europe to
make use of the services covered by such contracts.
4.
Bidders shall be notified of contract award by Open Grid Europe in writing; for the purposes of
this provision, notifications made by fax shall be deemed to have been made in writing.
5.
Immediately after the award of the contracts Open Grid Europe shall publish an anonymous list
of the contracts awarded without stating the bidders or prices concerned.
Article 3
Services
1.
The LFC bidder shall be obligated to make the services stated in the bidding form submitted
available to Open Grid Europe. Open Grid Europe shall be entitled, but not obligated to use
such services.
2.
The LFC bidder shall give Open Grid Europe reasonable advance notice of at least ten working
days of any change in its contact data.
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3.
For the period covered by the LFC the LFC bidder shall be the holder of the firm or interruptible,
freely allocable capacity rights required for the provision of the load flow commitments for which
it submits tenders. The LFC provider shall assign the underlying capacity contract either to a
balancing account or a sub-balancing account in due time and inform Open Grid Europe
thereof. It shall be deemed timely if the LFC provider makes these assignments and
notifications no later than the day after the monthly capacity auction on PRISMA European
Capacity Platform for which the respective monthly LFC lots are offered. The cost of booking
and utilizing the capacity rights required shall be borne by the LFC bidder.
4.
Open Grid Europe shall be obligated to pay the charge agreed under LFC contracts concluded
depending on the respective demand and commodity charges.
5.
Each LFC shall consist of one or more lots of 10 MWh/h each.
Article 4
Operational Handling
A. Prerequisites
1.
As a prerequisite for the offering and requesting of LFC services, the Parties shall maintain
functioning data communications in accordance with Paragraph 2 of this Section A.
2.
The LFC bidder shall conduct with Open Grid Europe, no later than 14:00 hours on the working
day before the start of each LFC, a communication test to ensure that the LFC bidder meets the
applicable data communication requirements for LFC. Without limitation, such requirements
shall include the ability of the LFC bidder to engage in automated data communications with
Open Grid Europe using Edigas. Data communication shall take place in the form of a
NOMINT/NOMRES message in a version of EDIG@S supported by and agreed with Open Grid
Europe.
3.
The LFC bidder shall be accessible 24 hours per day on each gas day via the telephone
number indicated in the bidding form. In addition, the LFC bidder shall be in a position to receive
and confirm LFC nominations received from Open Grid Europe at any time.
B. Nomination of LFC
1.
Open Grid Europe shall nominate LFC on the basis of a list including all tenders for lots at the
entry or exit points concerned received by Open Grid Europe for the gas day concerned. LFC
shall be nominated by Open Grid Europe by a non-discriminatory procedure taking into
consideration the criteria of safe and reliable network operation as well as economic viability at
the time of nomination. To enable a cost-effective use of LFC, Open Grid Europe may deviate
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from the order given by the merit order list as defined in Section B of this Article 2 (reference is
made to section 5 of ordinance BK9 11/606).
2.
Each LFC shall be nominated by Open Grid Europe by a NOMINT message sent at least three
hours in advance of the start of the LFC concerned. The LFC bidder shall respond promptly to
each such nomination message received from Open Grid Europe by sending a confirmation of
receipt through its communication system. The LFC bidder shall confirm the NOMINT message
by a NOMRES message in the agreed EDIG@S format.
3.
Each such NOMINT message shall contain at least the following information:
- designation of LFC (contract no.)
- validity period and amount of nomination as an hourly time series
4.
The nomination of an LFC shall result in a change in the entry or exit flow rates of the LFC
bidder without impact on balancing groups. The LFC bidder shall make and implement any
renominations which may be necessary to prevent impact on balancing groups.
5.
Values from substitute nomination procedures shall not be deemed to be nominations for the
purposes of LFC.
6.
In the event that an LFC is nominated, the LFC bidder shall only make such renominations for
the period covered by the LFC if and to the extent that the load flow resulting from any such
renomination does not frustrate the purpose of the LFC which has been nominated.
Without limitation, a renomination shall be deemed to frustrate the purpose of an LFC in the
case of a LFC to maintain a minimum flow, in the event that renominations running counter to
LFC are made in the same groups.
Article 5
GENERAL PROVISIONS
A. Taxes
1.
The charges agreed under LFC contracts shall be net charges and value added tax thereon, if
payable, shall be charged in addition thereto at the applicable rate and indicated separately in
each invoice.
2.
Any excise tax on natural gas ("natural gas tax") which may be payable shall be charged at the
applicable rate in addition to charges under the LFC contract concerned and indicated
separately in each invoice.
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B. Invoicing and Payment
The LFC bidder shall issue to Open Grid Europe monthly invoices for the charges payable under
each LFC contract.
C. Force Majeure
1.
If a Party is unable to perform its obligations because of force majeure pursuant to Paragraph 2
of this Section C, said Party shall be released from the obligations concerned. The other Party
shall be released from its corresponding obligations to the extent that and as long as said first
Party is prevented from performing its obligations because of force majeure.
2.
For the purposes of this Contract, "force majeure" shall be deemed to be any unforeseeable
external circumstance which the Party affected could not have been expected to prevent or
could not have prevented in good time by applying reasonable care and measures which it
would have been technically feasible and commercially viable to take. Without limitation, force
majeure shall include natural disasters and terrorist attacks, power failures, the failure of
telecommunication connections, strikes, lawful lockouts, and statutory provisions or acts of
governments, courts or authorities, irrespective of the lawfulness of such acts.
3.
The Party affected by force majeure shall promptly inform the other Party thereof, stating the
reasons for and likely duration of force majeure. In any such case, the Party affected shall take
all technically feasible and economically viable steps to resume the performance of its
obligations as soon as possible.
4.
Where possible, the Parties hereto shall cooperate to remedy any errors or disturbances.
5.
Nothing contained herein shall affect Section 16 (2), EnWG (German Energy Industry Act).
D. Liquidated Damages
Should the LFC bidder infringe its LFC obligations in whole or in part, Open Grid Europe shall be
freed completely from its obligation to pay for the month of breach and additionally entitled to require
the LFC bidder to pay, for each such infringement, liquidated damages. These liquidated damages
shall be calculated for each month of breach as follows:
• In case of a commodity component of a LFC the amount of agreed lots per month shall be
multiplied with a utilization period of 20 % of the respective month of breach.
• The demand charge component of the LFC shall be calculated by multiplying the agreed lots
under the LFC contract for the month of breach.
Open Grid Europe shall be entitled to charge a penalty with outstanding payment claims of the LFC
bidder.
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The payment by the LFC bidder of liquidated damages to Open Grid Europe under this Section D
shall be without prejudice to the right of Open Grid Europe to claim actual damages in excess of
such liquidated damages.
E. Confidentiality and Data Protection
1.
The Parties shall treat confidentially the content of any contract concluded under these LFC
GTC and all information and data in whatsoever form which they obtain in connection with such
contract (hereinafter referred to as "Confidential Information") and shall not disclose such
Confidential Information or make it accessible to third parties without the prior written consent of
the Party affected. The Parties undertake to use the Confidential Information obtained
exclusively for the purpose of the performance of such contract.
2.
Either Party shall be entitled to disclose without the written consent of the other Party any
Confidential Information obtained from the other Party
-
to an affiliated company in, provided that such company assumes the same confidentiality
obligation;
-
to its representatives and consultants if and to the extent that disclosure is needed for proper
performance of the contractual obligations and such persons or companies have undertaken
to treat such information confidentially prior to the receipt thereof or are under a professional
secrecy obligation in respect of such information; or
-
to the extent that the Confidential Information
o
was legitimately known to the Party receiving the information at the time it was
obtained from the other Party;
o
was already in the public domain or becomes publicly available other than through an
act or omission of the receiving Party; or
o
has to be disclosed by a Party due to a statutory provision or a court or official order
or a request of the regulatory authorities; in any such case, the disclosing Party shall
inform the other Party thereof without undue delay.
3.
The confidentiality obligations stated hereinabove shall remain in force for a period of two years
after the expiry or termination of the contract concerned.
4.
Nothing contained herein shall affect Section 9, EnWG (German Energy Industry Act).
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F. Assignment
1.
Neither of the Parties shall assign any of its rights or obligations under any contract concluded
under these LFC GTC or such contract in its entirety to any third party without the prior written
permission of the other Party. Said permission shall not be withheld in the event that such third
party assignee reliably warrants the performance of the obligations under said contract which
are to be assigned.
2.
In the event that Open Grid Europe assigns its rights and obligations under these LFC GTC or
any contract concluded under these LFC GTC to a third party which is an affiliated company of
Open Grid Europe under Section 15 AktG (Joint Stock Corporation Act), such assignment shall
not require the permission of the bidder.
3.
Paragraph 2 of this Section F shall apply mutatis mutandis in the event that Open Grid Europe
transfers network operation to a third party.
G. Severability
1.
If any of the provisions of these LFC GTC or any contract concluded under these LFC GTC are
or become ineffective or void or are found not to provide for any matter requiring to be provided
for, the other provisions of these LFC GTC or said contract shall remain in full force and effect
and shall be deemed to be otherwise complete.
2.
The Parties hereto hereby undertake to replace any such ineffective or void provisions or
provisions which have been found not to provide for any matter requiring to be provided for by
effective, valid and complete provisions having as far as reasonably possible the commercial
and financial effect intended by the contract concerned and corresponding as closely as
reasonably possible to the intentions of the Parties.
H. Changes in Circumstances
1.
If unforeseeable circumstances occur during the term of any contract concluded under these
LFC GTC which have considerable economic, technical or legal effects on said contract but
which were not provided for in said contract or were not considered when said contract was
concluded, and if it would consequently be unreasonable for a Party to fulfil any specific
provision of said contract, the Party affected by such changed circumstances shall be entitled to
require the other Party to amend said contract to take account of the changed circumstances,
also considering any commercial, technical and legal effects on the other Party.
2.
The Party citing the circumstances described in Paragraph 1 of this Section H shall specify and
prove the necessary facts.
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3.
The right to require an amendment to the provisions of any contract shall apply from the time
when the Party requiring such amendment requests such amendment for the first time as a
result of changed circumstances, unless the Party concerned could not reasonably have been
expected to require such amendment at an earlier date.
I. Written Form
Except as stated hereinabove, any amendments or additions to these LFC GTC or amendments
or additions to or terminations of LFC contracts concluded under these LFC GTC, including
amendments or additions waiving the requirement for amendments, additions or terminations to
be made in writing, shall be invalid unless made in writing.
J. Term and Termination
LCF contracts concluded under these LFC GTC may only be terminated prematurely for
reasonable cause. Without limitation, the following shall be deemed to constitute reasonable
cause for the premature termination of such contracts:
-
infringement by either of the Parties of any material provision of the contract
concerned;
-
refusal by the Federal Network Agency to recognize the costs incurred for the
provision and/or uptake of load flow commitments as volatile costs according to §1
section 5 ARegV ordinance regardless of any reason;
-
the making of an admissible application for the opening of insolvency proceedings
against either of the Parties.
K. Venue for Disputes, Applicable Law, Miscellaneous
1.
These LFC GTC and the contracts for LFC concluded hereunder shall be governed by and
construed and interpreted in accordance with German law, with the exception of the UN
conventions on contracts for the international sale of goods (CISG). The venue for any disputes
arising between the Parties out of or in connection with these LFC GTC and any contracts
concluded hereunder shall be Essen.
2.
Open Grid Europe shall not make any charge for the participation by shippers in a call for
tenders. Each of the Parties shall itself bear any and all costs which it may incur in connection
with the tender procedure.
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